Crossing Trust land to access your own property

One of the paths around Minnowburn © Minnowburn, National Trust

One of the paths around Minnowburn

The National Trust’s policy about allowing people to cross its land to get from their own property to the public highway.

This is only relevant to you if your house is separated from the public highway by land which belongs to the National Trust.

Most people’s houses (farms or businesses properties), or their grounds, run right up to the edge of the public highway, but that is not always the case. Where there is land belonging to someone else in between, the owner of the house will need that landowner’s permission to cross it. If you have a house where this is the case, it will normally have been pointed out to you by your conveyancer when you bought the house.

If the landowner gives you permission that will either be on the basis that it can be ended at any time (often called 'a licence') or that it is for a long fixed period (such as 99 years) or forever (such long term arrangements are often called 'easements'). Mortgage companies now normally want there to be an easement, rather than a licence.

If you, or the previous owners of your house, have been crossing the land for many years (normally more than 20), without any formal permission from the landowner, then you may have gained a right to carry on doing that (sometimes called 'a prescriptive right').

Strictly speaking you do not need to have a formal document from the landowner recording that, but there are some clear advantages in doing so, as we mention in the section on prescriptive rights.

Asking the National Trust for permission to cross its land
If the National Trust owns the land between your house and the public highway, and you already have a driveway across the land, or want to build one, you should check the ownership details for your house (the Land Registry entries for your house or if it is not registered at the Land Registry, the title deeds).

If you do not have already a formal right to cross the land you should contact us to find out whether we would be able to grant you one. Details of how to contact us are set out below.

Rights established through long use ('prescriptive rights')
If you can show that you and previous owners of the house have been crossing our land for more than 20 years we will normally be happy to provide you with a formal document confirming your right to do that. In many such situations you will not strictly, need such a document but we recommend that you have one because it will avoid possible confusion over exactly what the right is.

It is important to remember that:

  • Any right from long use will not apply if you change the use of the house (for instance start using it for a business), or if you want to build a second house on the same plot, or if you have only crossed the land on foot and now want to drive across it as well.
  • The right is only a right to cross the land – it is not a right to park on it, or to change the surface of the driveway.
  • The land itself does not belong to you, you just have a right to cross it.

The formal document, which we will prepare, sets all this out and will include a map showing clearly the route.

Where you have acquired a right by long use and want to document it we do not normally ask you to pay a fee, or to reimburse us for our legal or surveyors costs, because documentation helps us as well as you.

Where there is no right through long use
If you want to create a new access, or there is one there but it is less than 20 years old, the position is different. In these cases you don’t have a right to be allowed to create or use the access, but you should still contact us so we can discuss with you whether it would be possible for us to give you the right to use the access if it is already there, or to build and use a new access.

The effect on the appearance of the area
In deciding whether we can agree to give you the right our first concern will be the impact which the building or use of the route would have on the appearance and character of the area. The National Trust was set up to protect historic and beautiful places, so we cannot normally agree to changes which we feel would detract from the appearance or feel of the land which we look after, or land nearby. For example the building of a number of new, tarmacced, drives across a verge in a village, particularly if linked to the building of new houses, may change the feel of the place from predominantly rural to more suburban, in a way which is not appropriate to that area.

Specially sensitive areas
If we can’t agree to the access you want, we may sometimes be able to suggest a different route. Sometimes, though, the appearance of the area is so sensitive that it is just not possible for us to agree to a new driveway. This is particularly likely to be the case if the land is part of a common, because the National Trust has special obligations to prevent building (and that includes the building of roadways) on commons.

How much will it cost?
If we agree that the driveway would not have a bad effect on the appearance of the area we will then need to agree with you what price it would be appropriate for us to charge you for giving you permission to cross the land.

Where a house is separated from the public road by someone else’s land the house will normally be worth more if it has a formal, long-term right to cross that land than if it doesn’t. So when we give you permission to cross the land we are increasing the value of your house, just as we would be if we were to sell you some extra land.

Because we are a charity, it is a legal requirement that we agree the best price we can (from the charity’s point of view) for giving the permission. Normally that price will be a proportion – up to a half – of the increase in the value of your house as a result of your being given the permission.

We will also ask you to pay the legal and surveyors’ costs which we incur in considering your request and preparing and completing the grant of the permission (or 'easement'). The legal and surveyors’ costs will depend on how much time we have to spend on the matter, including how easy or difficult it is to reach agreement with you over the details of the permission. But typically they will be between £500 and £1,000, in addition to the price for the permission itself.

We do not normally charge a price, or recover our legal and surveyors’ costs, in cases where you can show that you have been using the driveway for more than 20 years.

Changing an existing right
Sometimes people who already have a right to cross the National Trust’s land want to modify that right. That might be because they want to extend a right now limited to agricultural use to use also to get to a house, or to extend a right to cross the land on foot so that it can be used for vehicles as well, or because they want to build a second house in the grounds of the first house.

If you want to change a right in those, or similar, ways you will normally need to ask for our permission. In dealing with your request we will approach it in much the same way as we would a request for a new permission (which, in effect, it is). So we will consider first what impact the extension of the right, and the carrying out of any linked development on your land, will have on the appearance and character of the area. If we feel that it won’t affect those adversely we will agree an appropriate price with you, normally based on a proportion of the increase in value of your property from the change, and will ask you to pay that and the cost of our legal and surveyors’ fees.

What will the formal permission look like?
Every situation is different, so we can’t say in advance exactly what it will look like, but in most cases the permission will be based on a deed of easement (download an example). It is called a 'deed of easement', because that is the traditional name for such documents, and it will be what any conveyancer will be expecting to see if and when you come to sell your property.

We have tried to make the document as easy to understand as possible, but equally it needs to make absolutely clear what it is that we are permitting, and what you are agreeing to do, so this does mean some of the language has to be a little formal.

Why does the document limit the use of the driveway to a specific use?
Because if you are paying for the permission, the price will have been fixed on the basis of that particular use. Alternatively, if you are being given the permission as confirmation of a right you have obtained through long use, that long-use right is itself limited to a specific purpose.

In either case, if in the future you wish to extend or change the right, please contact us as mentioned under 'changing an existing right', and we will be happy to consider whether we can agree to a change, on the basis mentioned in that part of this note.

Contact details
If you would like more information about the matters covered, please contact:

Tim Butler
The Solicitor
The National Trust
Kemble Drive

Telephone: 01793 817838

If you think you might need permission to cross the National Trust land to get to your house from the public road, and would like us to give you such a permission please contact our Head of Rural Surveying, David Evans, who will put you in touch with the National Trust surveyor local to you who will deal with your request:

Mark Walsingham
Deputy Head of Rural Surveying/Catchment and Water Adviser
The National Trust
Kemble Drive

Telephone: 01793 817733.

This note is prepared as a general guide for people who may want permission to cross the National Trust land to get to their land from a public road. It summarises the approach with the National Trust will take in dealing with requests for such permission. It is not designed as legal advice. We recommend that you consult your own lawyer or surveyor if you wish fully to understand the legal and valuation issues.